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Right to Shut Up

June 25, 2023

Ernesto was a 24-year-old high school drop-out with a police record when he was accused in 1963 of kidnapping, raping, and robbing an 18-year-old woman. She was making her way home from the bus stop after work at a Phoenix movie house.

She was bound and forced into a car and driven around for about 20 minutes. She was raped, robbed, and driven around some more, finally being dumped blocks from her house. She reported the events to the police.

Some days later, she and her cousin noticed a car driving slowly around the bus stop where the attack had occurred. They reported it to the police. The owner of the car lived in nearby Mesa. Ernesto was the live-in boyfriend of the owner. He agreed to appear in a lineup.

During a two-hour interrogation, Ernesto confessed, in writing, to the crimes. His confession acknowledged that he understood his rights. He should have shut up. He had the legal right to remain silent, right? Well, no, he did not. At that time this legal right was not recognized. He would suffer the lack of the Right to Shut Up. It was not until 1966 that Ernesto Miranda would see that right recognized.

“In a 5-4 ruling, the Supreme Court reversed the Arizona Supreme Court decision and declared that Miranda’s confession could not be used as evidence in a criminal trial.”

This is how the famous “Miranda warning” came to be. The ‘Miranda’ we are all familiar with from television and movies:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

This warning must be recited by law enforcement officials when detaining suspects to ensure they are aware of their rights to an attorney and against self-incrimination. This requirement carries some obligation for law enforcement. Authorities cannot be sued for failing to deliver the warning, but failure to do so will most likely cause evidence to be excluded; Charges to be dismissed; Failure to convict. You have the RIGHT to shut up. And this meshes nicely with the Temporal Science of Shut Up, namely knowing WHEN.

There is no rule against authorities lying to extract information from a suspect. It is a legal tactic to elicit a confession. The authorities in Ernesto’s case led him to believe the victim had identified him. She had not. They did not inform him of his right to an attorney, a right enshrined in the Constitution. His conviction was tossed. Was he guilty? In this instance, it did not matter. His newly identified/recognized rights had been violated. Do not be outraged. He was retried and convicted, sentenced to twenty to thirty years in prison. Justice played out ultimately. Is that the outcome in every case? Absolutely not.

Interrogations in criminal investigations can be long. Exhausting. The interrogators can use deception and even lies to elicit the truth. It is not unheard of for innocent people to confess to crimes they did not commit. Sometimes under threat of worse consequences of going to trial and losing even IF innocent. This all recommends strongly that legal advice be obtained. Even more strongly that people exercise that Right to Shut Up. To remain silent, at least until legal advice is available. Things said can/WILL be used against you.

In spite of all that, for some reason, some insist on waiving their Right to Shut Up; Failing to exercise it. Flouting the consequences. Without going into politics of things, a recent news story brings all of this (for me) into sharp focus. The story is in relation to Donald Trump’s recent indictment on 37 counts related to possession of government documents. Much has been made of his defensive claims to have declassified those documents at the heart of his difficulties. Doesn’t matter. The act under which he has been charged does not differentiate as to classification. You may have different feelings about where the wrongdoing lies in this case. It may or may not matter to you that the offenses are real or merit rethinking of support. I’m writing to point out the dangers of failing to exercise the Right to SHUT UP.

The audio tape of Donald Trump discussing a classified document with individuals who did not have security clearance is “the smoking gun piece of evidence” in the federal indictment of the ex-president, former prosecutor Joyce Vance said.

In a town hall on CNN, he failed to exercise the Right to SHUT UP.

“I took the documents; I’m allowed to,” he told Ms. Collins at one point, asserting that he had “the absolute right” to do so under the Presidential Records Act.

At least one expert considers continued failure to exercise his Right to Shut Up could be life-altering. A “terminal sentence.”

Another said statements following his “indication” are straight-up confessions.

This article is not meant as a tirade on the travails of Donald Trump. I’m not out to influence opinions on his character, words, actions, or legacy. I believe history will judge all of that quite appropriately. The courts will adjudicate his indicted actions. I’m only highlighting the RIGHT we all have to Shut Up and that there are consequences for not exercising that right at the proper WHEN. It might be heartburn or damaged/destroyed relationships. It might be health or safety. It might be loss/restriction of privilege or freedom. Consequences. Our words can work against us. Return to bite us, and the words that hurt worst are frequently our own. Like many of his attorneys, I hope at some point Mr. Trump will come to appreciate and exercise his Right to Shut Up.

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